Rothman v. Rothman , 6 N.C. App. 401 ( 1969 )

170 S.E.2d 140 (1969) 6 N.C. App. 401

Joyce Mann ROTHMAN
v.
Jacob ROTHMAN.
Jacob ROTHMAN
v.
Joyce Mann ROTHMAN, Israel Mann and Ruth Mann.

No. 6912DC469.

Court of Appeals of North Carolina.

October 22, 1969.

Moses & Diehl, by Philip A. Diehl, Raeford, for plaintiff appellee.

Bryant, Lipton, Bryant & Battle, by James B. Maxwell, Durham, and Minor, Thompson, Savage & Smithers, by Joseph B. Beneditti, Richmond, Va., for defendant appellant.

MORRIS, Judge.

This is an alimony and child custody proceeding which raises questions of conflicts of laws. Defendant presents four assignments of error. The first is directed to the refusal of the court to grant full faith and credit to the Virginia decree, the second is directed to the refusal of the court to dismiss the action under the doctrine of res judicata, the third is to the court's receiving evidence at the hearing and to the court's findings of fact and conclusions of law, and the fourth is to the signing of the order. We will consider these assignments of error collectively.

The cases are legion on the point that the primary consideration in custody cases is the welfare of the child or children involved. It is well established in North Carolina that a change in circumstances must be shown before an order relating to custody, support or alimony may be modified. Shepherd v. Shepherd, 273 N.C. 71, 159 S.E.2d 357 (1968); In Re Marlowe, 268 N.C. 197, 150 S.E.2d 204 (1966); Elmore v. Elmore, 4 N.C.App. 192, 166 S.E.2d 506 (1969) and statutes, texts and cases there cited. G.S. § 50-13.7, cited in Elmore, entitled "Modification of order for child support or custody" states:

"(b) When an order for custody or support, or both, of a minor child has been entered by a court of another state, a court of this State may, upon gaining jurisdiction, and upon a showing of changed circumstances, enter a new order for support or custody which modifies or supersedes such order for custody or support."

The facts of this case dictate that this statute must be applied and that in order for the Hoke County District Court to modify the Virginia decree, that court must gain jurisdiction and a change of circumstances must be shown.

By virtue of the physical presence of the child within the boundaries of this State, the Hoke County District Court has jurisdiction, upon a proper showing, to modify the Virginia decree as it pertains to the custody of the child. G.S. § 50-13.5(c) (2), par. a. It is apparent from the record that plaintiff neither alleges nor proves any change of circumstance which would justify the Hoke County District Court in modifying the Virginia decree as it did by awarding custody of the minor child to plaintiff. Plaintiff cites in her brief In Re Craigo, 266 N.C. 92, 145 S.E.2d 376 (1965), and Cleeland v. Cleeland, 249 N.C. 16, 105 S.E.2d 114 (1958), on the point that the full faith and credit clause of the United States Constitution, Article IV, Section 1, does not conclusively bind the North Carolina courts to give greater effect to a decree of another state than it has in that state or to treat as final and conclusive an order of a sister state which is interlocutory in nature. We agree. However, these cases are applicable only in determining that the courts of North Carolina may hear matters in a custody proceeding. There must still be a showing of changed circumstances before our courts may modify the order of a sister state, a fact which plaintiff admits in her brief.

Section 20-108, Code of Virginia (1950), provides:

"The court may, from time to time after decreeing as provided in the preceding section (power to confer custody), on petition of either of the parents, or on its own motion or upon petition of any probation officer or superintendent of public welfare, which petition shall set forth the reasons for the relief sought, revise and alter such decree concerning the care, custody, and maintenance of the children and make a new decree concerning the same, as the circumstances of the parents and the benefit of the children may require."

It is obvious that both Virginia and North Carolina permit modification of custody decrees. Whatever Virginia may do in this respect, North Carolina may do. See New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S. Ct. 903, 91 L. Ed. 1133 (1947); Dees v. McKenna, 261 N.C. 373, 134 S.E.2d 644 (1964). For the North Carolina courts to modify a Virginia child custody decree would not give any greater effect to the laws of Virginia. In this case the full faith and credit clause requires that the Virginia decree be honored unless a change of circumstance is shown which would justify our courts in modifying the decree.

We must conclude from the record before us that the Law and Equity Court of the City of Richmond, Virginia, had jurisdiction to hear the divorce action filed by Jacob Rothman, that the decree entered was valid and that said decree is entitled to full faith and credit by the courts of North Carolina in the absence of a change of circumstances.

The doctrine of res judicata is not applicable in this case since it would only bar relitigation of issues as they existed on 25 April 1969, the date of the Virginia decree, and would not bar a hearing to determine whether circumstances had changed since the date of that decree. New York ex rel. Halvey v. Halvey, supra. See also Thomas v. Thomas, 248 N.C. 269, 103 S.E.2d 371 (1958).

Professor Lee points out in his treatise on North Carolina Family Law that there must generally be a substantial change of circumstances before an order of custody is changed. 3 Lee, North Carolina Family Law, (1963), § 226. This indicates that more must be shown than a removal by one parent of a child from a jurisdiction which may enter an adverse decision to the removing parent. It must be shown that circumstances have so changed that the welfare of the child will be adversely affected unless the custody provision is modified.

For the reasons stated herein, the order of Judge Stuhl must be vacated, and the cause is remanded for the entry of an order placing custody of Charles Hyam Rothman in Jacob Rothman in accordance with the Virginia decree.

Reversed and remanded.

MALLARD, C. J., and HEDRICK, J., concur.